University of Michigan Journal of Law Reform Volume 49 2016 Retention and Reform in Japanese Capital Punishment David T. Johnson Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Common Law Commons, Comparative and Foreign Law Commons, Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation David T. Johnson, Retention and Reform in Japanese Capital Punishment, 49 U. MICH. J. L. REFORM 853 (2016). Available at: https://repository.law.umich.edu/mjlr/vol49/iss4/4 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. RETENTION AND REFORM IN JAPANESE CAPITAL PUNISHMENT David T. Johnson INTRODUCTION The novel Anna Karenina begins with the observation that “[a]ll happy families resemble one another, each unhappy family is un- happy in its own way.”1 This insight suggests that for a marriage to be happy it must succeed in several ways, while failure in one re- spect means a marriage is doomed. The “Anna Karenina principle” has been applied in various fields, from business entrepreneurship2 and animal domestication3 to ecology4 and ethics.5 In many human activities, success “requires avoiding many separate possible causes of failure.”6 When it comes to capital punishment, “abolitionist nations all seem alike, but every death penalty nation is retentionist in its own way.”7 In this version of the Karenina principle, abolition, and death penalty reform more generally, may fail in many ways. Much has been written about why the United States retains capi- tal punishment, and the causes are contested.8 And most empirical 1. LEO TOLSTOY, ANNA KARENINA 1 (Louise & Aylmer Maude trans., Knopf Inc. 1912) (1873). 2. PETER THIEL, ZERO TO ONE: NOTES ON STARTUPS, OR HOW TO BUILD THE FUTURE 34 (2014). 3. JARED DIAMOND, GUNS, GERMS, AND STEEL: THE FATES OF HUMAN SOCIETIES (1997), 157. 4. Dwayne R.J. Moore, The Anna Karenina Principle Applied to Ecological Risk Assessments of Multiple Stressors, 7 HUM. & ECOLOGICAL RISK ASSESSMENT 231, 231–37 (2001). 5. ARISTOTLE, NICHOMACHEAN ETHICS 38 (W.D. Ross trans., Oxford 2009) (c. 384 B.C.E.). 6. DIAMOND, supra note 3, at 157. 7. DAVID GARLAND, PECULIAR INSTITUTION: AMERICA’S DEATH PENALTY IN AN AGE OF ABO- LITION 22 (2010). 8. Cf. SANGMIN BAE, WHEN THE STATE NO LONGER KILLS: INTERNATIONAL HUMAN RIGHTS NORMS AND ABOLITION OF CAPITAL PUNISHMENT (2007); STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY (2003); GARLAND, supra note 7; ANDREW HAMMEL, ENDING THE DEATH PENALTY: THE EUROPEAN PERSPECTIVE IN GLOBAL PERSPECTIVE (2010); ANDREA D. LYON, THE DEATH PENALTY: WHAT’S KEEPING IT ALIVE? (2014); FRANKLIN E. ZIMRING, THE CONTRADIC- TIONS OF AMERICAN CAPITAL PUNISHMENT (2003); Andrew Moravcsik, The New Abolitionism: Why Does the U.S. Practice the Death Penalty While Europe Does Not?, 4 EUR. STUD. 1 (2001); Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 OR. L. REV. 97 (2002); Moshik Temkin, The Great Divergence: The Death Penalty in the United States and the Failure of Abolition in Transatlantic Perspective (Harvard Kennedy Sch., Working Paper No. RWP15-037, 2015). 853 854 University of Michigan Journal of Law Reform [VOL. 49:4 inquiries about retention and abolition—like most studies of capi- tal punishment— are concentrated on the United States.9 This preoccupation with the United States provides a “distorted and par- tial view” of questions about continuity and change in death penalty law, policy, and practice in the world.10 The United States is pecu- liar in many respects,11 including capital punishment.12 By focusing on retention and reform in Japanese capital punish- ment, this Article aims to explain the high degree of continuity in that country’s death penalty. The Japanese case is important for at least two reasons. First, Japan is rich and democratic but not West- ern. As poor and undemocratic countries develop their economies and polities, Japan could be a positive role model for those coun- tries that want to retain the death penalty and a negative role model for those that prefer to abolish or otherwise reform the institu- tion.13 Second, Japan is an important part of Asia, a region home to sixty percent of the world’s population and the majority of the world’s executions.14 If Asia is “the next frontier” in the two-century debate about whether state executions should continue,15 then ex- amining how Japan is “retentionist in its own way” should provide insights about obstacles to the campaign for abolition in that region and in the rest of world. This Article focuses on the failure of abolition and of death pen- alty reform in Japan in order to illustrate contingencies in the trajectory of capital punishment in the modern world. Part I de- scribes three facts about postwar Japan that help explain why it retains capital punishment today: a missed opportunity for aboli- tion during the American occupation of the country after World War II; the long-term rule of a conservative political party; and eco- nomic and geopolitical power that has enabled the country to resist the influence of international norms. Part II describes a few ways in which Japanese capital punishment has changed in recent years— and many ways in which it has not. Part III focuses on four causes of 9. ROGER HOOD & CAROLYN HOYLE,THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 3 (4th ed. 2008). 10. Id. 11. See generally SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE-EDGED SWORD (1996). 12. GARLAND, supra note 7. 13. Matthew J. Wilson, Seeking to Change Japanese Society Through Legal Reform, in CRITICAL ISSUES IN CONTEMPORARY JAPAN 265 (Jeff Kingston ed., 2014) (describing how “emerging countries study and even model their economic and legal systems after Japan”). 14. DAVID T. JOHNSON & FRANKLIN E. ZIMRING, THE NEXT FRONTIER: NATIONAL DEVELOP- MENT, POLITICAL CHANGE, AND THE DEATH PENALTY IN ASIA xii (2009). 15. Id. at xi. SUMMER 2016] Retention and Reform 855 continuity in capital punishment in Japan: the rarity of exonera- tions in Japanese criminal justice; a jurisprudence that does not treat death as a special form of criminal punishment requiring ex- tra safeguards for criminal defendants in capital cases; a high degree of secrecy surrounding executions and capital sentencing; and a society in which race is not regarded as a salient factor in the administration of capital punishment. Part IV suggests how reform in Japanese capital punishment might be accomplished by chal- lenging some of the causes of continuity. Part V concludes by observing that the road to death penalty reform is not merely a pos- itive path requiring leadership from the front in the face of public support for the institution. It is also a negative path leading away from beliefs and practices that present obstacles to the institution’s diminution and abrogation. I. JAPANESE RETENTION The most striking death penalty trend is its decline around the world.16 A few countries have been carrying out executions more frequently in recent years (Indonesia, Pakistan, Iran, and Saudi Ara- bia), and a few others have been sentencing more people to death (Egypt and Nigeria), but the overall trend is “towards abolition.”17 In the United States, seven states have abolished capital punish- ment since 2007.18 Among states that retain the death penalty, there have been large declines in death sentences and executions.19 In Texas, which has carried out more executions since 1976 than the next six most frequent executing states combined, no person was sentenced to death in the first six months of 2015.20 Texas’s death row has also declined in size from 460 persons in 1999 to 257 in 2015—a drop of 44 percent.21 One question about the future is whether the death penalty will continue to decline, as some experts 16. See HOOD & HOYLE, supra note 9, at 14. 17. On the way out—with grisly exceptions; Capital Punishment, THE ECONOMIST, July 4, 2015, at 50. 18. States With and Without Death Penalty, DEATH PENALTY INFO. CENTER, http://www. deathpenaltyinfo.org/states-and-without-death-penalty (last visited Apr. 8, 2016). 19. See generally DEATH PENALTY INFO. CENTER, THE DEATH PENALTY IN 2015: YEAR END REPORT (2015), http://deathpenaltyinfo.org/documents/2015YrEnd.pdf. 20. Rodger Jones, So far this year in Texas, number of death sentences = zero, THE DALLAS MORNING NEWS: OPINION BLOG, (July 2, 2015, 4:47 PM), http://dallasmorningviewsblog.dal lasnews.com/2015/07/so-far-this-year-in-texas-number-of-death-sentences-zero.html/. 21. Eric Nicholson, Texas Falls Out of Love with the Death Penalty, Embraces Life Without Parole, DALLAS OBSERVER (Dec. 17. 2005, 4:00 AM), http://www.mystatesman.com/news/ news/crime-law/where-is-the-texas-death-row-class-of-99-now/nnWQw/. 856 University of Michigan Journal of Law Reform [VOL. 49:4 predict,22 or whether most of the countries and states “likely to em- brace the abolitionist cause” have already done so.23 The retention of capital punishment in Japan is puzzling in sev- eral respects. Japan and the United States are the only two developed democracies that retain capital punishment and con- tinue to carry out executions on a regular basis. Other rich and democratic countries have abolished the death penalty in law (Ca- nada, Australia, New Zealand, and all the countries of Europe except Belarus)24 or practice (South Korea and the special adminis- trative region of Hong Kong).25 Japan does not have radically local democracy, which has made abolition difficult in the United States, nor does it have a history of race relations like that which has shaped the death penalty in the United States.26 Conversely, Japan’s governmental structure shares many of the characteristics that ex- plain capital punishment abolition in European countries such as Germany, France, and the United Kingdom.